In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a congressional committee about inefficiencies and cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which President Nixon took responsibility. Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded that his dismissal was unjust.

Yes. The Court held that the President "is entitled to absolute immunity from damages liability predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history."

Chief Justice Burger: We will hear arguments first this morning in 79-1738, Nixon against Fitzgerald and the related case, 80-945, Harlow and Butterfield against Fitzgerald.

Mr. Miller, you may proceed whenever you are ready.

In your own time, Mr. Miller, I hope you will address the question of whether this case possibly presents a matter of seeking an advisory opinion of the Court.

But do it in your own time.

Mr. Miller: Mr. Chief Justice, and may it please the Court, the issue here in this case deals with the question of what privilege the President of the United States may have when sued for damages by a private individual for a constitutional violation, alleged, or a violation of a statutorily inferred cause of action.

Just briefly if I may, let me address the facts.

The case started in November of 1968, over 13 years ago, when one Fitzgerald, a cost accountant for the Air Force, testified before Senator Proxmire's committee, and testified that there were substantial cost overruns on the [C5-A] transport plane project.

This testimony, as Mr. Fitzgerald has alleged, engendered a substantial impact in terms of his job during the Johnson Administration.

He was told by Secretary Brown at the time that he had not been a good witness, and has alleged that actions were taken to make his employment less inviting.

Subsequently, President Nixon was sworn in in January, and President Nixon's Secretary of the Air Force, Mr. Seamans, took over in February of 1969.

During the course of Mr. Seamans' administration, it was decided and, in fact, in November there was signed a reorganization order, which was an attempt to reorganize the Air Force to make it more cost efficient.

As a part of that reorganization order, there were a substantial number of Air Force employees who were reduced in force, one of whom was Mr. Fitzgerald.

The case itself had engendered publicity at the time, particularly when it became public knowledge in November of 1969 that Mr. Fitzgerald was going to be reduced in force.

On December 8 of 1969, President Nixon was preparing for a press conference.

In the course of the preparations for that press conference, he was advised by aides of a conflict within his administration over the question of whether Mr. Fitzgerald should be offered another job.

The Defense Department was violently opposed, and others in the administration thought he should be given another job.

The question was asked at the press conference; Mr. President Nixon said he would look into the matter.

Subsequently, President Nixon did, in fact, look into the matter and suggested that Mr. Fitzgerald be given a job with the Bureau of the Budget and indeed, asked Mr. Haldeman, one of his aides, to take steps to see that Mr. Fitzgerald was given another job in government.

In 1970, Mr. Fitzgerald left office as an employee and commenced a Civil Service proceeding seeking reinstatement.

There, the matter rested for some three years.

The Civil Service proceeding continued, and on January 30 of 1973, Secretary Seamans, Secretary of the Air Force, testified at the Civil Service proceeding; testified at length.

He testified, among other things, that he received absolutely no direction from the White House with respect to the discharge or removal of Mr. Fitzgerald from the federal service.

He did, on the other hand, invoke executive privilege as to the question of whether or not... and what was actually said with respect to his conversation with White House personnel.

The following day, on January 31, 1973, President Nixon was blind-sided in the course of a press conference by a question from Clark Mollenhoff, who had left the government, and was now back as a private reporter.

Unidentified Justice: Is that a term of art?

Mr. Miller: That is a term of art, Mr. Justice White.

The question was unexpected and he was unprepared.

In the course of his press conference in answering the question, he answered a question about executive privilege of Mr. Seamans, and further said,

"I was responsible for the Fitzgerald firing, I did it, I take responsibility."

Or words to that effect.

Unidentified Justice: By the way, was the question Mr. Mollenhoff put related in any way to the duties he had formerly performed on the White House staff?

Mr. Miller: Yes, sir, because Mr. Mollenhoff had earlier, back in 1969, conducted an investigation into the Fitzgerald matter and had tried to find out what the facts were with respect to the position of the Air Force with respect to Mr. Fitzgerald.

Mr. Mollenhoff had also made his views known on many occasions concerning his belief as to the issuance of... or taking executive privilege by people in the White House or people in the Executive Branch.

He was substantially opposed to it.

Returning now to January 31 of 1973, after the press conference we have two tape recordings which are of interest here.

First, at 4:17 in the afternoon of January 31, President Nixon is talking to his aide, Mr. Colson, and this is one of the recorded conversations.

In that conversation, Nixon again says

"Yes, I got rid of Fitzgerald, I was the one who did it."

Thereafter, in approximately 20 minutes later at 4:32, President Nixon, again in a recorded conversation, talks to Defendant Erlichman.

All of a sudden, the President realizes, and so states,

"I am thinking of another case, I am thinking of another guy."

Thereafter, having realized that it was not Fitzgerald that he had been talking to, that he had made a mistake in the press conference, he talked to Mr. Ziegler, his press secretary, and the following day, on February 1, Mr. Ziegler issued a statement that President Nixon was mistaken in his reference to Mr. Fitzgerald.

This was at a press conference called at which the President was not present, but only the press secretary.

Thereafter, the Civil Service Commission found that Mr. Fitzgerald had been reduced in force improperly because it had been done for reasons personal to him.

And he was ordered reinstated with back pay.

Subsequently, on July of 1974, Mr. Fitzgerald filed a lawsuit naming Secretary Seamans and several of the people at the Department of the Air Force for damages, claiming he was improperly discharged and alleging a conspiracy.

This case eventually was dismissed on the statute of limitations ground, affirmed by the Court of Appeals, with the exception of the one White House individual, Mr. Butterfield.

Mr. Butterfield, the court held that Mr. Fitzgerald could not have known of Mr. Butterfield's involvement, and therefore, the statute of limitations had not run against him.

Then in July 1978, some ten years after the initial testimony by Mr. Fitzgerald, Mr. Fitzgerald sued the ex-President of the United States, Mr. Nixon, Mr. Harlow and, of course, Mr. Butterfield was a defendant.

He alleged several violations including violation of the First Amendment and the two statutorily-inferred causes of action which continue until before this Court, which is a violation of 18 USC Section 1505, the obstruction statute, and 5 USC Section 7211, guaranteeing employees the right to contact Congress.

The court below, after extended discovery involving depositions in California, depositions of many of the former members of the Nixon Administration, finally determined that the statute of limitations defense was inapplicable, and that the defense of absolute privilege was unavailable to either President Nixon or to his aides.

This appeal followed.

I have gone into the facts in some detail, if the Court please, to try to show how the chief magistrate of this country can become involved in a matter which, on a scale, is not very important from a national standpoint, compared to the other decisions that a president must make, and that over a five and a half year period he may have devoted some 20 or 30 minutes of his time to it, and now finds that he is charged with a constitutional and statutory violation.

There has been substantial discovery going into his motivations, the motivations of his aides, and that he still would, except for an agreement to limit liability, would be facing a month's trial.

As to the agreement on the limitation of liability, if the Court please, this was done, entered into, for the following reasons.

First, the President of the United States as President of the United States achieves a status unlike any other litigant.

By reason of the many decisions that he has to make while in office, he incurs enmities, he incurs enemies and he, many times, is looked upon with great disfavor.

As a practical matter, representing a former president who has not been treated with great respect by the press, to put it mildly, is a very difficult problem for a lawyer because of the practical situation of taking a case where that man is a defendant before a jury in any jurisdiction in the United States.

It is a very, very difficult problem and it is one of the real reasons behind why absolute privilege is a requirement when we are talking about constitutionally-based suits against presidents or former presidents.

They go in, I don't care how popular the president may have been, but during the course of his administration, decisions are made, he does things which are not looked on with favor by some portion of the public, and he is in a very difficult position when it comes to actually going before a jury of his peers in a civil lawsuit.

Unidentified Justice: Mr. Miller, before you get to that, won't you address... I see your time is running... the question the Chief Justice put to you?

As I understand it, Mr. Nixon has paid Fitzgerald at least $100,000 and has, what, a conditional liability for another $42?

Mr. Miller: That has been paid, sir.

Unidentified Justice: And that has been paid also.

And no matter what the outcome of this suit may be, Fitzgerald keeps that.

Mr. Miller: That is correct.

Unidentified Justice: Then what are we addressing here anyway?

Mr. Miller: Because, if the Court please, there is an additional payment, a third payment, which is required by the agreement.

And that is in the amount of $28,000.

If, indeed, President Nixon loses in this particular case and the case is remanded to the district court, then he is required to pay Fitzgerald an additional $28,000.

If, in fact, the case is remanded to the district court and there is a decision by the district court based on the record as it now stands, President Nixon does not have to pay the additional $28,000.

Unidentified Justice: But to the extent of $142,000, he has conceded liability, hasn't he?

Mr. Miller: Oh, if the Court please, certainly not.

This was a means recommended by counsel--

Unidentified Justice: Fitzgerald keeps the $142,000, doesn't he?

Mr. Miller: --Yes, sir.

But it is by no means, it is by no means any intimation that he is, shall we say, guilty of the allegations in the complaint.

To the contrary.

He has steadfastly maintained and provided an agreement that the sole reason for making this payment was to avoid a month-long trial, the amount of--

Unidentified Justice: What about the old adage that actions speak louder than words?

Mr. Miller: --That does not apply here, if the Court please, because both counsel for Fitzgerald, Mr. Barrett Prettyman at the time, and counsel for President Nixon felt that this issue should continue, and the agreement was drafted so that he is not... it is merely a limitation of liability.

It does not moot out the case because there are additional sums that have to be--

Unidentified Justice: Well, that sounds to me like a feigned issue.

That counsel have agreed to feign an issue to get us to decide a question that, as the Chief earlier... a question earlier suggested, might be only an advisory opinion.

And we certainly can't render advisory opinions, can we?

Mr. Miller: --Of course not.

And you would not be in this case, if the Court please.

This is not... I don't think that the payment of $28,000 is a feigned issue, if the court please.

Unidentified Justice: As compared to $148,000.

Mr. Miller: Even as compared to $142,000.

Unidentified Justice: Well, if you win, then he made a mistake in paying the $142,000, didn't he?

Mr. Miller: On the contrary.

President Nixon has not had to pay--

Unidentified Justice: Oh, he's just generous.

Mr. Miller: --No, sir.

Because we have not had to make... he has not had to pay counsel and the costs of preparing for the trial and going through the trial.

Looking at the amount involved, it was a very close estimate as to what it was going to cost to get this case to trial and through trial.

So under no circumstances would I concede that this is a feigned issue or that the payment of some money is, indeed, any--

Unidentified Justice: When was this agreement reached, Mr. Miller?

Mr. Miller: --This agreement was signed on the morning of May 19th, at approximately 3:00 a.m.--

Unidentified Justice: That was Monday morning?

Mr. Miller: --That was Monday morning.

Unidentified Justice: On the order list of... at 10:00 appeared our ode of this case, was it?

Mr. Miller: Yes... well, appeared the grant of the certiorari in the Halperin case, and the holding of this case to a subsequent date, the Fitzgerald case to a subsequent date.

So that the agreement was signed before the Halperin decision was announced, and before certiorari was granted in this case, which was much later.

Unidentified Justice: Mr. Miller, this was 1980, wasn't it?

You said May 19th.

I want to get the year down.

Mr. Miller: I'm sorry.

Yes, it was May 19, 1980.

Yes.

Unidentified Justice: And when was this Court advised of the entry of that agreement?

Mr. Miller: On June 10, 1980, approximately 20 days later.

There was filed with the Court a joint statement by Mr. Prettyman and Mr. Mortenson, and that has been in the record of this Court since that date, and that was well in advance of any grant of certiorari by the Fitzgerald--

Unidentified Justice: Does that joint statement recite the details you have told us this morning?

Mr. Miller: --Yes, sir.

Unidentified Justice: Mr. Miller, may I inquire, so that I really understand what you are saying, in the event that this Court were to somehow resolve this case in a manner which required the lower court to adjudicate any further facts, it would trigger the payment of an additional $28,000, but in fact there would be no further adjudication.

Is that right?

Mr. Miller: Yes.

If the court, if the district court enters an order based on the current record after remand from this Court, and that ends the matter, then we do not owe the additional $28,000.

Unidentified Justice: That isn't too clear to me.

Suppose this Court were to rule in the case on the merits as they have been raised in the petition, and to hold against your client, and therefore the matter is returned to the district court eventually.

Would that then trigger the payment of the $28,000, and there would in fact be no further proceedings?

Mr. Miller: Yes.

If we lose--

Unidentified Justice: So no matter what happens, there will be no further adjudication of the facts--

Mr. Richardson: Mr. Chief Justice, and may it please the Court, in the case of Petitioners Harlow and Butterfield, a denial of immunity would require them to endure a protracted and expensive trial of their reasonableness and good faith in a matter which at most they touched only tangentially.

The central issue therefore is whether senior advisors to the President of the United States should be required as a matter of basic public policy to endure a trial in such circumstances.

I respectfully submit that on these facts, the answer should be no.

To require the trial of allegations of complicity in a constitutional tort as thin and remote as those asserted against Harlow and Butterfield would be to stretch completely out of shape the already slack criteria for inferring a private cause of action from a constitutionally protected right.

Unidentified Justice: Mr. Richardson, was Mr. Butterfield working at the White House during all of the relevant period of time?

Mr. Richardson: Yes, he was, Justice Rehnquist.

He worked there during all of the periods at least in which he is alleged to have had in any way even the remotest contact with the situation.

Unidentified Justice: Mr. Richardson, there is no settlement agreement for your clients.

Is that correct?

Mr. Richardson: That is correct, Justice O'Connor.

There is none.

Unidentified Justice: Doesn't your statement suggest, Mr. Richardson, perhaps not in this case, but that there may be other cases in which the Butterfields and Harlows would not have a privilege?

Not have immunity, really?

Mr. Richardson: Yes, Your Honor.

As I shall try to demonstrate at a later point, we think that at least one possible way of limiting the necessity for trials in cases such as this would be, first of all, to make unmistakably clear that the burden of persuasion as to the absence of reasonableness and the existence of malice should rest upon the plaintiff, and secondly, that the evidence on these points should be established in accordance with a stricter standard than preponderance, a standard such, for example, as clear and convincing evidence.

It is clear in any case, and indeed undisputed, that the Petitioners Harlow and Butterfield had no part in abolishing Fitzgerald's job.

Harlow's contact with the matter arose from his responsibility for handling Congressional relations for the White House.

The only significant elements of contact with the matter on his part consisted of four conversations with Air Force Secretary Robert Seamens.

The first two of these conversations occurred in May, 1969, and even after exhaustive discovery proceedings, all we know about Harlow's part in these conversations is that he warned against the proposed timing of the Air Force reorganization plan because it might cause adverse Congressional repercussions.

The second pair of conversations between Harlow and Secretary Seamens took place in November and December of 1969, after the reorganization plan had already been carried out.

The depositions on the part of all those who knew anything about the situation, tell us merely that Harlow was non-committal in both conversations.

That is all the evidence as to Petitioner Harlow, virtually all, except for the tape recordings to which my brother counsel, Mr. Miller, has already referred.

Unidentified Justice: How are these facts relevant, Mr. Richardson, to the question of whether your clients should have absolute liability?

Mr. Richardson: They are relevant, Mr. Chief Justice, for the reason that they are the only facts that connect them with the case at all and which have thus far already dragged them into the position of being defendants.

So--

Unidentified Justice: Well, if you have absolute liability, the facts are irrelevant.

Wouldn't you agree?

Mr. Richardson: --Yes, they would be irrelevant entirely in that case.

I said that the question of the avoidance of trial in this case does present the issues of proof, the burden of proof, and the standard of proof to which I have already referred, but our initial position is that they should be entitled to absolute immunity on the basis essentially that a Congressional aide benefits from the immunity under the speech and debate clause, as this Court held in the Gravel case.

We argue that if the President is to be absolutely immune for the reasons already ably argued by Nixon's counsel, then it should follow for the Gravel reasons that so should senior advisors upon whom he must necessarily depend in order to carry out the widely ramified and enormously demanding responsibilities of his office.

Unidentified Justice: Is this in any way connected with whether their conduct is within or without the scope of their authority, or do they have an absolute immunity in your submission, even if what they do is outside any authority that they have been given as aides to the President?

Mr. Richardson: We would recognize that their actions must be within the outer perimeter of their authority within the terms of the language in this Court's decision in Barr against Matteo.

We would argue that--

Unidentified Justice: That would be true also under the Gravel case, would it not?

Mr. Richardson: --Yes, it would be true, we believe, with respect to any assertion of immunity, absolute or qualified, that the actions must be within the general scope of the authority of the public official in question.

Unidentified Justice: I thought Barr against Matteo was limited to scope.

Mr. Richardson: Except for the holding that absolute immunity was available in the case of a common law tort.

Unidentified Justice: But there were no outer limits involved in that.

This was then the work that he was doing.

Mr. Richardson: Yes.

And so here, the only connection between Harlow and this matter arose out of his responsibilities in Congressional relations and the concern of the Secretary of the Air Force that there would be Congressional repercussions if the reorganization plan went forward.

In Butterfield's case, his connection with it arose out of the fact that he was deputy to the chief of staff of the President, and the secretary of the cabinet.

So that in each case--

Unidentified Justice: Mr. Richardson, do you think that the so-called higher standard of proof or putting the burden on the plaintiff rather than the defendant when the issue is state of mind would actually avoid many trials?

Do you think any summary judgments could be granted with confidence in cases where your standards were adopted, that couldn't likewise be granted where the burden of proof remained as it is and the burden of persuasion as it is?

Mr. Richardson: --I think, Justice Rehnquist, that if this Court were in effect to re-enforce the policy reflected in is plurality opinion in Butz against Economou, that it could significantly reduce the number of cases that would have to go to trial and increase the number in which a motion for summary judgment was granted.

The Court expressed great optimism in Butz against Economou that insubstantial causes of action, cases in which there had been the exercise of loyalty, ingenuity, and finding a constitutional tort could be eliminated.

Now, this Court can either find in situations like this that absolute immunity should be granted, which of course was the position of those who dissented in part in that case, or it can... it can partially reach, partially remedy the undesirable by-products of Butz against Economou by making it harder to get to court.

It would have to issue what amounted to a very clear-cut kind of directive to the lower courts to look very hard at the allegations alleged to establish unreasonableness with respect to the awareness of the actor that what he did could affect someone else's constitutional rights, and it would have to enjoin upon the lower courts close scrutiny of allegations of malice, applying the two standards of Wood against Strickland.

Unidentified Justice: What if the malice end of it or the bad faith of it was wholly eliminated, and you had only an objective test of the immunity, whether a reasonable person should have realized that his action was unlawful?

Mr. Richardson: That would be a way of partially narrowing the number of cases required to be submitted to trial, and the objective determination of reasonableness would on the face of it be easier to make on the record.

Unidentified Justice: But it would... it wouldn't eliminate certainly some preliminary proceedings, but on summary judgment it would be a little different matter--

Mr. Richardson: Yes.

Unidentified Justice: --than if the malice part were still in the case.

Mr. Richardson: Yes.

To that extent it would be a contraction of the very wide ramifications of the combination of Butz against Economou on the one side and Bivens on the other, the combination of which has been to generate over 2,000 Bivens type cases now pending, of which to date only nine have resulted in the award of damages.

The result has been the generation of an enormous volume of litigation with dubious public policy benefit.

Unidentified Justice: Mr. Richardson, if as you suggest absolute immunity for aides is limited to conduct within their authority, although perhaps I should have asked this of Mr. Miller, would you make the same observation as to the absolute immunity claim by the President?

Mr. Richardson: Oh, yes, I think so.

Unidentified Justice: If he acted outside the scope of his authority.

Mr. Richardson: I am sure it would not be conceded that he did in this--

Unidentified Justice: No, but if it were discovered that he did.

Mr. Richardson: --If he did, yes.

Unidentified Justice: He would not enjoy absolute immunity.

Mr. Richardson: I think that should follow.

Yes, sir.

Well, now, I have already touched on the--

Unidentified Justice: Mr. Richardson, may I ask you a question?

At the end of your brief, you have a reference to the appropriate standard of proof on this issue of qualified immunity, which you apparently aren't prepared to identify in your own brief, and I have some difficulty in this particular case understanding your argument, because it seems to me the question at the bottom of the case is whether the Air Force was reorganized in order to eliminate this job and get rid of the plaintiff.

That is kind of the basic factual issue as I understand it.

Now, isn't that going to remain the issue no matter what we talk about, whether it is qualified immunity or liability or what?

The question in the first instance is whether in the case of our Petitioners they had anything to do with the Air Force action at all, and we think that the thinness of their connection with the Air Force action is part of the basis on which the motion for summary judgment should have been denied or should have been denied at least if an appropriate proof requirement were--

Unidentified Justice: But if their connection is so thin, it seems to me that is a defense on the liability as well as a defense under your qualified immunity.

Mr. Richardson: --It would be if the case had to go to trial.

Clearly, yes.

Unidentified Justice: You are saying as a matter of law their connection with this transaction is so thin that there is no liability.

Mr. Richardson: Yes.

We are saying that the--

Unidentified Justice: So it is much like--

Mr. Richardson: --motion for summary judgment should as a matter of law have been denied, and while we can't quarrel necessarily with the basis on which it was denied by the lower court, that nevertheless this Court could and should raise the standards for determining when such a motion should be granted or denied, as the case may be.

But we would argue, apart from this point, which I do think is central to the question of the administration of justice in this context, that these Petitioners are also entitled to absolute immunity apart from deriving it from the President of the United States, to the extent that they perform the kind of special functions recognized in Butz against Economou.

It would be hard to think of an example of special functions that the Court could have had in view that is more demanding of immunity than that of senior advisors to the President of the United States.

The Court has, of course, recognized partly for historic reasons the immunity of judges, the immunity of prosecutors.

It has extended that to recognition of the absolute immunity of special assistants to the Attorney General, agent attorneys in the Department of Agriculture, while denying absolute immunity to the heads of the Departments of Justice and Agriculture.

Unidentified Justice: --Except that that wasn't a blanket denial.

It was, I suppose, if they were performing the kind of function for which absolute immunity is recognized, they would have it for that function, too.

Mr. Richardson: Yes, and I am not suggesting that the Court wrongly denied absolute immunity to judges and prosecutors, but I am suggesting that the policy considerations that justify absolute immunity for judges and prosecutors surely must apply to people who deal with an enormous volume of problems day in and day out with unknown possible ramifications as they may affect private individuals.

Unidentified Justice: Well, now, is this present argument that the special functions argument is the predicate for that, that the President is absolutely immune?

Suppose it was held that the President was not?

Then where does your special functions argument go?

Mr. Richardson: I think it is arguable that the President's senior advisors may have absolute immunity even if he doesn't.

Insofar as the policy argument rests on a concern that the officeholder will act timidly or indecisively in dealing with matters coming before him, the President of the United States, I suppose, might be considered to be beyond worry about eventual lawsuits, but where the problem is that of recruiting good people to assume responsibilities in sensitive positions, whether in the White House or indeed other Executive Branch positions, the worry about lawsuits can deter their willingness to take these jobs, or can paralyze their performance of them.

Unidentified Justice: Mr. Richardson, are you going to argue or leave to your brief the question of whether there is any cause of action in this case at all?

Mr. Richardson: Yes, Justice White.

We do raise that question.

We acknowledge that it was not among the questions presented in our petition.

We point out--

Unidentified Justice: It is semi-jurisdictional, anyway.

Mr. Richardson: --Semi, I suppose, but the Court has in the past dealt with questions other than those specifically identified.

We cite a case, Procunier against Navarette, in which the obverse situation was presented.

There, the issue identified was whether there was a cause of action, but the Court said the question of qualified immunity is subsumed by that question.

Here, the question of whether there is any cause of action at all is intimated related to the fact that we have here an employer-employee relationship which has significance both for the issue of immunity and for the issue of the cause of action.

Unidentified Justice: Your argument on the merits of that issue, though, is what, Mr. Richardson?

Mr. Richardson: Our argument on the merits of that issue is drawn from a decision of the Fifth Circuit in a case called Bush against Lucas, where the court having fully in view the earlier decisions of this Court, particularly Carlson against Green, nevertheless said that the relationship of employer and employee is distinguishable from the relationship of the government as sovereign to the private citizen, and that where, then, the Congress has regulated that relationship through provision for such a remedy as reinstatement and back pay, then the result should be the denial of a Bivens type action, that there is no need for inferring a constitutional tort in such a case, because there is otherwise an adequate remedy in that special relationship, and there the court relied on the reference, the sort of escape hatch there that had been identified in this line of cases which refers to special factors counseling hesitation for the inferring of a Bivens suit.

Unidentified Justice: Mr. Richardson, do you think we must reach the private cause of action issues before we address the immunity issue?

Mr. Richardson: I don't believe, Justice Powell, I could argue that you must do so, except perhaps in a strictly analytical sense.

From the standpoint of the responsibility of the Court toward issues addressed to it, I have no doubt that you could skip over the issue and go on to the absolute immunity.

Unidentified Justice: Is your case here on the collateral doctrine, collateral order doctrine?

Mr. Richardson: Yes, it is.

Unidentified Justice: So perhaps we could reach the immunity issue without considering the cause of action issue, perhaps.

Mr. Richardson: Yes, I believe you could do so.

Unidentified Justice: But your submission is, it would be preferable to reach the cause of action issues?

Mr. Richardson: Yes, that is correct.

Unidentified Justice: Well, do you understand that the... is your claim of absolute immunity constitutionally based?

Is it based in the separation of powers, for example?

Mr. Richardson: We think that consideration of the separations of powers at least reinforces our claim of absolute immunity insofar as the denial of it necessitates inquiry into the internal processes of the Executive Branch--

Unidentified Justice: Your submission, then, I take it, would be that even if Congress passed a law purporting to say when the President would be liable or when he wouldn't, that that law would be unconstitutional?

Is that part of your absolute immunity argument?

Mr. Richardson: --I don't think we had thought of pressing it quite so far.

We had only gone to the point of arguing that from a policy standpoint, it needs to be recognized that the denial of absolute immunity injects a trial court, the judicial branch into the internal deliberations of the White House.

Unidentified Justice: Well, to the extent that your argument is constitutionally based, the cause of action issue, if it were decided that there was no cause of action, would avoid a constitutional decision.

Mr. Richardson: Yes, that would avoid... of course, it would avoid all the subsequent issues, to rule that it is not legitimate in a personnel action of this kind where the plaintiff has already received back pay and has already been reinstated to his old job, that you should not on top of that infer a Bivens action.

Unidentified Justice: In other words, he has had all the redress he is entitled to.

Mr. Richardson: Yes.

Precisely.

Thank you.

Thank you, Mr. Chief Justice.

Chief Justice Burger: Mr. Nolan?

ORAL ARGUMENT OF JOHN E. NOLAN, JR., ESQ., ON BEHALF OF THE RESPONDENT

Mr. Nolan: Mr. Chief Justice, and may it please the Court, we recognize, of course, that the Court does not have the obligation to weigh the evidence in this case, but there are a couple of items on the facts that have come up that I think that I should address, one particularly in light of Justice Stevens' question.

The first one was Mr. Miller's statement, which goes to the validity of the reorganization, that a substantial number of Air Force employees were RIF'd, one of whom was Fitzgerald.

While that statement might be technically true, the record, the joint appendix at Page 67A reveals that of the 80 positions abolished in the Office of the Secretary of the Air Force, Mr. Fitzgerald was the only employee who was actually issued a RIF notice and was actually separated by RIF.

Our point goes a little bit deeper, however.

We have characterized the reduction in force and the reorganization in our brief as a sham.

That is admittedly a strong word, and the Court may be interested in why we would make that characterization.

The irony of it is that approximately one year before the reorganization was put into effect, a similar reorganization, the same one, was proposed, but it would have increased Mr. Fitzgerald's responsibilities rather than eliminated his job.

The only intervening event was his testimony before the Senate Committee.

In early 1969, on January 6th, a few weeks after his testimony, a fellow named Lang prepared a memorandum for the Secretary of the Air Force, and in that memorandum he said, there are two things you can do essentially if you want to get rid of Fitzgerald.

One is bring a proceeding against him for cause, and the other one is reorganize his section and abolish his job.

Mr. Hampton of the Civil Service Commission, the Chairman of the Civil Service Commission, in May of 1969, meeting with Secretary Seamens, said the same thing.

If you want to get rid of Fitzgerald, you are going to have to abolish his job.

The Civil Service Commission, in its hearing examiner's finding on the Fitzgerald case, found that the reorganization was inappropriate and a direct violation of the Commission's statute and its regulations.

Mr. Nixon himself, speaking on the White House tapes, gave the reason for the elimination of Fitzgerald.

He said,

"It wasn't just that he was complaining about the overruns, but rather that he was doing it publicly."

Secretary Laird, the Secretary of Defense, testifying on the Hill, in the Congress, asked about the Fitzgerald matter, said, yes, he was fired.

So, I think that for all of those reasons, it is plain that the reorganization was not really a reorganization insofar as it concerned Fitzgerald.

Unidentified Justice: Are any of these facts, as I suggested to your friends, relevant if there is absolute liability... absolute immunity?

Mr. Nolan: I am moving toward a response to that question, Mr. Chief Justice, but I would be glad to take it up at this time.

Unidentified Justice: Take it up in your own time.

Mr. Nolan: There is one other factual point that I would like to address, and that deals with the attempted retraction of Mr. Nixon's statement.

The day after the statement was made, his press secretary, Ron Ziegler, in a meeting with the press, said that there is no record of this matter ever having been presented to the President for a decision.

Now, that was flatly, baldly, obviously inaccurate, so apparently when he made that statement Mr. Ziegler didn't know about the meeting in the oval office of the White House at 4:17 and 4:32 p.m. of the preceding day.

Mr. Ziegler's second statement was that the President misspoke himself.

He intended to say not rather than what he said.

I think that one would just have to read that in the record and make his own judgment about it.

Considerably later, approximately six years later, it has developed that President Nixon at the time may have thought that he was referring to another government official named Gordon Rule rather than Mr. Fitzgerald.

And he so testified in his deposition, although the depositions... there were two of them, and they were taken admittedly a long time later.

The problem with mixing Rule and Fitzgerald is that the facts just don't fit.

In the transcript of the White House tapes--

Unidentified Justice: Mr. Nolan, is this the least bit relevant to what we have before us here?

Mr. Nolan: --Well, I think it--

Unidentified Justice: Certainly, it is in your own time, but you haven't got much.

Mr. Nolan: --I think that it is relevant, Your Honor, because I think really that the White House tapes and the public press conference are the core of this case.

And the question--

Unidentified Justice: If there is absolute immunity, they wouldn't be relevant to anything, would they?

Mr. Nolan: --Well, they would, Your Honor, be relevant to whether or not the President of the United States was acting within the scope of his powers or the duties prescribed by law for his performance.

Now, you see, we argue that he was not, and that is the heart of our scope argument, that in firing Fitzgerald, not for the reasons that are the basis of this case, but because of Fitzgerald's rights under the Veterans Preference Act, Mr. Nixon was doing an action which was prohibited to him by law.

Now, if that is right, if Presidents don't fire employees in the Department of the Air Force, and if that is well known and well established, as it is in the decisions of this Court, as the Court knows, then there is a very real question about whether Nixon in this instance, acting as President of the United States, was acting within the scope of his responsibilities, broad as that scope is.

Unidentified Justice: Would you distinguish that from the Myers case, that Chief Justice Taft wrote about the firing of a postmaster?

Mr. Nolan: I will certainly try, Justice Rehnquist.

The distinction here, I believe, is, as the... as the Court of Appeals found and as the District Court in this case found, that Mr. Fitzgerald had a legislatively protected position.

He could not be removed summarily from--

Unidentified Justice: So did Myers, didn't he?

Hadn't Congress stated that the President could not remove him without the consent of the Senate?

Mr. Nolan: --Without the consent of the Senate, yes.

I think that the Myers case was decided quite a while ago.

Whether it remains a correct statement of the law in its field or not may be open to question.

But on the facts of this case, I don't think there is any question about it.

The District Court found that the President of the United States could not interfere with or terminate the employment of Mr. Fitzgerald.

He made that finding as a matter of law.

Unidentified Justice: Could the Secretary of the Air Force?

Mr. Nolan: No.

Absolutely not.

Only in a proceeding for cause.

Now, see, there are only a few alternatives in this case, and they have been the same, and they have been presented consistently from the very beginning.

That was--

Unidentified Justice: But the Secretary... the Secretary could start such a proceeding.

Mr. Nolan: --The Secretary can start such a proceeding.

Clearly, yes, Justice White.

Unidentified Justice: And the President could tell him to start it.

Mr. Nolan: Yes.

Clearly.

Unidentified Justice: But the Secretary could say, sorry, but you have no authority to do that, and the President would say, well, I have authority to fire you, though.

0 [Generallaughter.]

Mr. Nolan: Yes.

That is a script that--

Unidentified Justice: Often happens, I suppose.

Mr. Nolan: --Perhaps not often, but sometimes certainly, and of course it has happened recently.

Unidentified Justice: And that is within the President's authority, isn't it?

Mr. Nolan: That definitely is within the President's authority.

I think it would also be within the President's authority to direct the Secretary of the Air Force to proceed for cause against Mr. Fitzgerald or any other employee of the Air Force.

Unidentified Justice: Yes.

Mr. Nolan, it is also clearly within his authority to be involved in a reorganization of the Air Force, isn't it?

If it was a legitimate reorganization, you wouldn't question his authority?

Mr. Nolan: Absolutely not.

Unquestionably.

Unidentified Justice: So isn't that one of the issues here?

Mr. Nolan: Yes.

Yes.

It is.

And that is why, in answer to your question, Mr. Chief Justice, I think that is why, to that extent, the facts are significant here.

Unidentified Justice: Suppose, to take an analogy, the clerk of a court somewhere... let's take a federal court to make it simpler and more direct... went to Congress and lobbied against some proposition that the courts through their regular channels, the judicial conference of the United States, had supported, and the chief judge of that court just fired him, or the court fired him, because of disloyalty.

Call it that if you want.

Any question but that the judge and the judges of that court would be absolutely immune?

Mr. Nolan: Well, as you know, Mr. Chief Justice, the case of immunity for a clerk of court is here now coming up before the Court.

I think that the question that you pose would involve the following issues.

It would involve essentially the issue of absolute judicial immunity, and I think that in previous decisions the Court has defined that as requiring that the action at issue be a judicial act, or that it be performed in the course of a judicial proceeding, and there have been a number of cases on that issue.

In other words, if a judge were to act administratively as distinguished from judicially, I think that would raise a question of the interpretation of that kind of action under the judicial immunity privilege.

I believe that the core issue, the heart of this case is the issue of absolute Presidential immunity.

I think that it is certainly in the briefs, but there hasn't been a great deal said about it in the course of this oral argument--

Unidentified Justice: Mr. Nolan, before launching into that, would you address yourself to the effect of the settlement agreement, please?

Mr. Nolan: --Yes, Justice O'Connor.

The settlement agreement in our view is a limitation agreement placing a limit on the defendants' liability, an upper and a lower limit.

There remains at issue the sum of some $28,000 depending on the outcome of the case in this Court.

Unidentified Justice: It is really almost a wager on how this Court will rule, in effect.

Mr. Nolan: I would not so characterize it, Justice O'Connor.

0 [Generallaughter.]

Any more than any other lawsuit is a wager by the parties at the time.

I might say from Mr. Fitzgerald's point of view that the settlement was extremely important to him.

He was at that time facing the prospect of a lengthy, difficult, and expensive trial on the issues that--

Unidentified Justice: $142,000 is a lot of solace.

0 [Generallaughter.]

Mr. Nolan: --Well, it may be, Justice Brennan, but it--

Unidentified Justice: I mean, as a prudential matter, why should we get into this?

Mr. Nolan: --Well--

Unidentified Justice: If you have bargained your way out of it and the President... ex-President has bargained his way out of it?

Mr. Nolan: --I might say that if the Court in its wisdom should choose to dismiss the writ as improvidently granted here, it would certainly involve no objection from our side of the case, you understand.

Unidentified Justice: I wouldn't think there would be.

But that isn't the suggestion.

The suggestion is that it is moot.

Mr. Nolan: I think that it quite clearly is not moot, Justice White.

I would like to be able to say that it was moot.

Unidentified Justice: The only case you are talking about would be the Nixon case anyway.

Mr. Nolan: That is correct.

Unidentified Justice: And I take it the way that the case is presented here for the other parties, that the issue of Presidential immunity is in those cases, too, because of the derivative immunity claim.

Mr. Nolan: Yes, the issue of Presidential immunity is in those cases, too.

Unidentified Justice: Yes, but, Mr. Nolan, suppose even if, as you say, the President acted outside the scope of his authority, but suppose his aides did not.

Then what?

Mr. Nolan: Well, the interesting thing, Justice Brennan--

Unidentified Justice: Suppose they acted within the scope of their authority, whatever that was.

Even if the President did not.

Mr. Nolan: --Well, then, it would be our position that the question of immunity for them should be dealt with under the method and standards and decisions of this Court, and that you should look at it to see whether what they did, whether their action was in the exceptional situation or special function kind of test that this Court has required.

Interestingly enough, as Justice Stevens' comment earlier indicated, that is not what they have said.

They have said, you know, Mr. Harlow said, look, Fitzgerald was not in my wicket.

I mean, they have said, we didn't have anything to do with it at all.

It wasn't within my scope of authority.

No, absolutely not.

I didn't... I was doing something else.

So there is that kind of internal tension in their cases, and the District Court found, of course--

Unidentified Justice: Yes, but in the hypothetical situation I put to you, I gather that the absolute immunity claim could not be derivative from the President, if the President had none because he acted outside the scope of his authority.

Isn't that right?

Mr. Nolan: --That is clearly true, Justice Brennan.

I think it is also true that if this Court were to find absolute immunity for the President of the United States, that would not imply very much for the Presidential assistants, particularly under the circumstances of this case and under the circumstances of their involvement in it.

Unidentified Justice: Mr. Nolan, in addition to the $142,000 your clients had reinstatement with back pay.

What about Mr. Richardson's argument that you have had all you have got coming to you?

Mr. Nolan: Well, with all due respect to Mr. Richardson, I don't think that that argument holds very much water.

I think that we tend to talk about this, and properly so, in the context of this case in terms of things like compensatory and punitive damages and right to jury trial, and deterrent effect of the remedy, and those kinds of considerations.

I don't think that those considerations in any way express the devastating impact of a firing of this type on a man like Mr. Fitzgerald, who at age 43, with--

Unidentified Justice: Put all you are asking is $28,000.

That is all you want.

Mr. Nolan: --That's--

Unidentified Justice: That is all you want, right?

Mr. Nolan: --That is almost right, Justice Marshal.

Unidentified Justice: Is that right?

Mr. Nolan: As to Petitioner Nixon, that is true.

Unidentified Justice: Right.

Mr. Nolan: But there are the other two defendants in the other case.

Unidentified Justice: You would analogize it to a libel or slander case, where the person may not be able to show any actual damages or per quad or per se or whatever the phrases are, but simply wants to have his conduct vindicated?

Mr. Nolan: No, I would not, Justice Rehnquist.

I think to evaluate the question you really have to look at the record in a broader scope, and perhaps it may be possible in the course of this oral argument.

I would suggest to the Court, however, that a reading of the Fitzgerald decisions... there have been several by District Courts and the Court of Appeals for the District of Columbia... where... and they have dealt with things like attorneys' fees, and interest on the overdue back pay, and so on, and I think it is fair to say that those opinions reflect not just a sympathy for Mr. Fitzgerald, but a frustration with the law which did not allow, in their opinion, the relief that he sought to be granted.

I don't want to make a bigger deal of this than it is, but the impact on someone who has a brilliant, a really distinguished record in government at that point and is suddenly out, I mean, he is out of the Pentagon, he is out of all Pentagon-related business as a practical matter--

Unidentified Justice: May I respectfully submit that he is not the only one?

Mr. Nolan: --Excuse me, Justice Marshal.

I don't believe I--

Unidentified Justice: That he is not the only one who has been unjustly fired from government.

Mr. Nolan: --That is certainly true.

That is certainly true.

Unidentified Justice: All right.

I was just wondering.

Mr. Nolan: But the question, I believe, was directed to whether there is a measure of injury here beyond that met by restoration and back pay.

To terminate this line, if I may, I think that probably the best single response to that question was the opinion and judgment of the United States District Court in the District of Columbia, March 3, 1981, Chief Judge Bryant, who found that after... 12 years after the fact, eight years after the litigation, whatever it is, that Fitzgerald had still not... still not, after all this time, been restored to a position that was equivalent to the position that he lost when he was fired.

So, that is how long it has gone on.

He has paid all of his legal expenses.

He hasn't paid attorneys' fees.

But he has paid expenses, and he has paid for depositions in Seattle, and so on.

Unidentified Justice: When he got the back pay and reinstatement, what job did they offer him?

Mr. Nolan: He was, I believe, a GS-17, and they offered him another GS-17 position, and it had that pay, but it didn't have the responsibility, and it didn't have the duties, and it didn't have the authority, and it didn't have--

Unidentified Justice: It was not the old job that--

Mr. Nolan: --Oh, no, it was not the old job.

No.

There has been a lot in the news about that, you know, even while he was on the old job, it changed from an evaluation of the expense of sophisticated weapons system, the work he was doing before, to doing a survey of bowling alleys in Thailand that were maintained by the Air Force.

No.

It is tough.

Unidentified Justice: --Is that before us?

Is any of this before us?

Mr. Nolan: Only in response to the questions of the Court.

Unidentified Justice: Well, let me ask you another one.

What was the total back pay in dollars and cents?

Mr. Nolan: The total back pay is in the record.

I would appreciate an opportunity to respond to that in more detail later.

It involved a period of time, some four years, with deducts for the pay that he received from the government, and questions about whether he had earned more--

Unidentified Justice: I assume from that that it was a tidy sum.

Mr. Nolan: --It was approximately... it was in the magnitude of $100,000 for four years.

His pay was about $30,000 a year at the time he was fired.

Unidentified Justice: Well, $30,000 a year for four years is more than $100,000, isn't it?

Mr. Nolan: I know, but there were offsets, Justice Marshal, that had to do with his government employment and also his other outside employment, and he had no money from January 5, 1970, until some time in 1974, when the back pay award, when the first installment of it was made.

He had no money or income from this job or anything related to it.

I think that perhaps I have imposed too much on the Court.

Unidentified Justice: But Mr. Nolan, this is really relevant to the argument your opponent makes on whether there is an implied cause of action, relying on the Fifth Circuit case.

Mr. Nolan: Oh, it is, very definitely.

Unidentified Justice: And I am curious to know precisely what elements of damage you claim in this proceeding from Harlow and Butterfield that were not part of back pay and reinstatement.

Mr. Nolan: Well, that would come out, Your Honor, in the development of the case.

The claims are $500,000 for compensatory damages and $3 million for punitive damages.

Unidentified Justice: Well, not dollars.

I mean, what uncompensated wrong is there that these defendants are responsible for?

Mr. Nolan: Well, they are the position that Fitzgerald was put in by the firing, and the long unsatisfactory trail of litigation that he has been reduced to as a result of that, and I don't--

Unidentified Justice: In other words, legal expense?

Is that what it is?

Costs of litigation?

Is that the other uncompensated item?

Mr. Nolan: --Well, I think that certainly would be included, and the costs of litigation have not been insignificant over this period of time.

Unidentified Justice: Mr. Nolan, what if 25 or 30 people had participated in the same kind of conduct that you attribute to Messrs. Butterfield and Harlow?

On your theory, you would collect from all 25 or 30 or 40 or 50?

Mr. Nolan: Well, if they are joint tortfeasors, I suppose that would be the general rule.

I think that in cases of this type, you must necessarily have a particular kind of proof, a demonstration of involvement.

I think this is a very unusual, very atypical case.

Justice White earlier asked a question about dropping malice as a requirement from the qualified immunity standard.

I think that in most cases, particularly cases involving the powers of the Presidency in large-scale public acts, it would be very difficult or impossible for a plaintiff to demonstrate malice.

Now, the difference here essentially comes down to a single factor, and that is the White House tapes.

The press conference and the White House tapes.

At the press conference, when he got the question, Mr. Nixon said, I made the decision on Fitzgerald.

It wasn't made by someone down the line.

It was submitted to me and I made it, and I stick by it.

And then, immediately thereafter, a matter of minutes or perhaps a few hours, he discussed the same thing in his own office, recorded on the White House tapes, and he said, I gave that order.

I said to get rid of Mr. Fitzgerald.

And he gave the reason for it.

He said, it wasn't just that he was complaining about the overruns, but that he was doing it publicly.

Now, that is an uncommon kind of evidence, and of course it wasn't until 1978 that Mr. Nixon was added to this case, long after the action had been filed, and almost four years after he left the office of President.

It is a very unusual case.

I think I really should move along to our points.

We would contend that the claims to absolute immunity should be denied here essentially for three reasons.

First, that this case very clearly does not present any of the exceptional situations or special functions that this Court has referred to as a requirement for absolute immunity in its decisions.

It very plainly doesn't.

Secondly, that in taking this action, the President of the United States, vast as his powers are, and broad as his authority is, exceeded that authority in that he did something that not only he had no authority to do, it wasn't something invested in him by law, it wasn't a duty in the sense that other defendants in immunity cases have been found to be carrying out the duties vested in them by law or the duties that they performed or, as Justice Marshal said, doing his job.

It wasn't that at all.

Presidents historically and in the current day do not fire employees in the Departments like the Department of the Air Force.

And we argue from that that he was acting outside the scope of his authority, and therefore not entitled to immunity.

Thirdly, and in brief summary, we argue that a finding of absolute Presidential immunity in this case would impermissibly impinge on the functions of the judicial and legislative branches of the government.

It is the function of the judicial branch to hear causes of action, to deter violations of individual rights, and to vindicate them in the course of its procedures.

That function would be frustrated by absolute immunity here.

More significantly, perhaps, would be--

Unidentified Justice: But that is true of any case in which we decide there is absolute immunity, like for judges, isn't it?

Mr. Nolan: --I don't believe it is to this extent, Justice Rehnquist, and I think also that, if I may continue, the impact on the Congress, on the legislative branch of the government, is far sharper and far harder.

It is characterized in the amicus brief filed in this case, in this Court, by a very broad selection of Senators and Congressmen.

It is characterized as devastating, essentially because it is the function of the Congress to legislate and to oversee the carrying out of the laws.

Now, particularly with regard to laws like this, and particularly with regard to the circumstances of this case, the information that it needs to legislate and to exercise its oversight responsibility frequently can come only from employees of the federal government, like Mr. Fitzgerald.

There isn't any question, as the Court realizes, I guess, there isn't any question about his testimony.

It was truthful and accurate, and in the sense that it was predicting something that was going to come about later and was not an established fact at that time, what it predicted did come about.

No one in the Air Force--

Unidentified Justice: Can't we decide this case without that, without passing on that?

If we find immunity, we don't have to be bothered with that, do we?

Mr. Nolan: --If you find immunity--

Unidentified Justice: Which is the point you just don't want to discuss, it seems.

Mr. Nolan: --I do want to discuss it.

Unidentified Justice: Well, please do.

You haven't much time, Mr. Nolan.

Mr. Nolan: Well, I would say, since I don't have much time, I would say in closing that if the Court should find absolute immunity for the President in this case, it very clearly should not find it for Harlow and Butterfield or Presidential assistants, and it could not do so without rearranging the disciplined process that it has gone through in a host of other immunity decisions.

Unidentified Justice: Do you think that the immunity that you have... the absolute immunity that you say would be so dangerous is different in character or scope from the absolute immunity granted to a prosecutor?

Let's leave the judges out of it.

A prosecutor has certainly vast powers which can and sometimes have been abused, but there is absolute liability as a matter of broad public policy.

None of you have really addressed that in your oral arguments.

Mr. Nolan: Is it different in character and scope?

Yes.

Very definitely, and very clearly.

The prosecutor's immunity, if we read the decisions of this Court right, of course, is not absolute either.

It is not by virtue of his office.

It is not an ex officio immunity.

It is, rather, only an immunity for initiating the prosecution and presenting the state's case in court.

For all of the reasons suggested in Imbler v. Pachtman and in Butz, we would find that it is... that it is different in character and different in scope.

It is much more limited in scope.

It is clearly different in character because it takes place in the course of the judicial system.

Now, this Court has recognized, and, I believe, properly so that there are a lot of considerations that make that safer, that the judicial branch might fairly be termed the least dangerous branch.

Those considerations are clearly not applicable to executive officials, and I believe that the Court--

Unidentified Justice: Isn't the prosecutor an executive official?

Mr. Nolan: --Well, he may be, Mr. Chief Justice--

Unidentified Justice: He may be?

Mr. Nolan: --in a status sense, in terms of where his position is.

But he is not in terms of the considered judgment made about why he should have immunity, and I think that--

Unidentified Justice: Well, is not the prosecutor in the federal system the arm of the Chief Executive of the country to carry out the mandate to see that the laws are faithfully executed?

Mr. Nolan: --Clearly so.

Clearly so.

No question about it.

But--

Unidentified Justice: So the subordinate would have an absolute immunity, but the source of the authority would have none, in your view.

Mr. Nolan: --Well, in our view, Mr. Chief Justice, immunity is not determined by where somebody is in government.

It is not determined by status or title or position in a government hierarchial or organizational sense.

It is, rather, determined in the public interest in each individual case, and with regard to the prosecutor, prosecutors' immunity, as outlined by this Court in Imbler and then the takeoff from it for other officials of the executive department in Butz v. Economou, is, I think, quite clearly placed in the judicial range, and the question of whether or not there should be immunity, how much is a deterrent needed, how safe is the process, all of those kinds of considerations, which have been reviewed by the Court, are in the context of a legal proceeding as distinguished from an executive action.

Now, the Court's statements with regard to executive action to the contrary point in the other direction.

I think the Court is quite clearly aware of the broad sweeping authority that executives have, and the dangers raised by that authority from the standpoint of individual rights.

If there are any further questions, I would be glad to answer them.

Unidentified Justice: Mr. Nolan, you haven't talked very much about the sources of your causes of action.

What Congressional evidence is there of an intention on the part of Congress under either one of the statutes upon which you rely to imply a cause of action against the President of the United States.

Mr. Nolan: Could I take a detour and get into that question, Justice Powell?

Unidentified Justice: You can get to it any way you wish.

Mr. Nolan: I would like to raise again for the Court the fact it is our position that the cause of action issue, again with all due respect to my learned colleague at the bar, is an imposition on the Court, and that the Court should not consider it.

It was clearly a collateral order.

It was not appealable, and it was not appealed.

Certification on it was denied.

It was not presented as a question in either cert petition.

Where it was referred to, in the Harlow-Butterfield cert petition, they said, well, it is a collateral order, not appealable, and we haven't appealed it.

Unidentified Justice: What did the Court of Appeals do?

Mr. Nolan: The Court of Appeals dismissed.

Unidentified Justice: Because they thought there was no jurisdiction here?

No jurisdiction in the Court to hear the appeal?

Mr. Nolan: Because they thought that the issue of absolute Presidential immunity, which was the only issue that was up, was not unresolved at that time.

Unidentified Justice: So you think they dismissed on the ground it was a frivolous appeal on that issue?

Mr. Nolan: On the issue of absolute Presidential immunity?

I... no, I would not say that they thought it was a frivolous appeal.

Unidentified Justice: Then why did they... did they dismiss on jurisdictional grounds or not?

Or do you know?

Mr. Nolan: Well, I don't know, quite clearly.

Unidentified Justice: I got the impression that they dismissed on the authority of the Halpern case.

Mr. Nolan: Yes.

Unidentified Justice: And yet I would have thought they would simply affirm, citing Halpern in a situation like that.

Mr. Nolan: Well, I suppose that that was a possibility.

Unidentified Justice: Do you think... is it clear that the court thought the case was properly in that court?

In the sense that whatever order was being appealed was appealable?

Mr. Nolan: It is not clear, Your Honor.

The only thing that was being appealed was absolute Presidential immunity.

There wasn't anything about the inferred or implied causes of action that was being appealed.

That had been denied certification by the District Court judge.

Unidentified Justice: What was being appealed was the summary judgment ruling, wasn't it?

Mr. Nolan: As stated in the notices of appeal, it was a little more specific than that, Justice White, but what was not being appealed, quite clearly, was the issue that was late presented to this Court after the petition for Certiorari was granted.

So, we would urge for those reasons that the Court not entertain that issue.

Now, we did--

Unidentified Justice: You are not claiming we don't have jurisdiction?

Mr. Nolan: --No, absolutely not.

Absolutely not.

Unidentified Justice: And if we should entertain it, it would, would it not, avoid the decision of a constitutional question?

If we decided it one way.

Yes.

I mean, it arguably would do that.

Mr. Nolan: That's correct.

Unidentified Justice: So for that reason there might be a prudential reason to consider it.

Mr. Nolan: --I think we are fairly here on the constitutional issue and the two statutory issues.

Read together, the First Amendment and those statutes quite clearly evidence a desire on the part of Congress that employees like Fitzgerald be free to testify before the Congress and to give the information that is called on for them, and beyond that, a will to penalize anyone who obstructs or interferes with that testimony.

Now, let me say in the dwindling moments of this argument that it is treated in our brief, I hope adequately.

It is also treated in more detail in the Congressional brief that I referred to earlier.

I recommend those selections to the Court.

Unidentified Justice: But is there any Congressional evidence as to the intention of Congress with respect to either one of these statutes to impose liability on the President of the United States in a damage suit?

Mr. Nolan: There is much Congressional evidence, Justice Powell, of the will to achieve that purpose.

The purpose of preserving the right of free speech before Congressional Committees and penalizing anyone who would interfere with it.

There are other inferences that I think may fairly be drawn.

If you are talking about a case like this where it is the Executive Branch, and you are talking about a statute like 18 US Code 1505, it may be asking too much to expect that the Administration in these circumstances would bring a criminal prosecution, although that is a criminal statute, that it would bring a criminal prosecution against someone who acted against Fitzgerald.

From that, I think it is fair to infer that if there is not a cause of action here, you may never get cases like this, and Congress clearly intended that that right be asserted, and that it be protected.